One of the constants of the social and armed conflict in Colombia since the middle of the twentieth century has been the participation of US military and intelligence personnel and contractors, including in the most sensitive installations and highest command and control posts, acting with an official cover that grants them all of the ‘diplomatic privileges and immunities’ enjoyed by staff of the US embassy. Other direct and indirect actors in the social and armed conflict that have enjoyed impunity and legal, political and economic privileges that have been just as comprehensive and absolute, albeit not generally recognized so explicitly, have been the multinational corporations.

During the ‘Justice and Peace Process’ associated with the 2005 accord between the Colombian State and paramilitary groups, the testimony of the commanders of the paramilitary groups concerning the involvement of some multinationals in financing and supporting their activities was becoming increasingly consistent and conclusive – until the paramilitary commanders were extradited to the United States, thereby terminating their testimony against the political and economic elites, whether Colombian or from other countries, and in effect putting them beyond the reach of the Colombian justice system.

One by one the few judicial processes that State courts and prosecutors initiated to investigate the involvement of these multinationals in the crimes committed by the paramilitary groups were terminated without achieving any substantive results. Similarly, the manoeuvres of the most powerful groups in the Colombian Executive and the Congress around what remains of the most recent ‘peace process’ (between the Colombian State and the FARC-EP) are doing everything possible to guarantee that the impunity of the multinationals (and other political and economic ‘third parties’) remains intact and resistant to any effort to realize justice, truth and non-repetition.

However, it is necessary to emphasize at the outset that the multinationals are fictitious creations that serve both to armour their owners and beneficiaries against legal and financial accountability as well as to hide their identity. One example of this is the ferro-nickel mine Cerro Matoso, which has been at the epicentre of a series of forced displacements, selective assassinations and other social and environmental disasters affecting surrounding communities since the 1980s. The mine was recently sold from BHP Billiton to South 32, supposedly disrupting the chain of control and accountability. However, among the main shareholders of both companies one finds members of the same small group of financial giants (such as JP Morgan, HSBA, Citibank, BlackRock, Vanguard Group, State Street Corporation, Capital Research & Management Co, etc.) that have taken control of a number of shares in many of the most strategic and lucrative companies on the Australian stock exchange (where BHP Billiton and South 32 are based) that is just sufficient to guarantee control over those companies, along with their control over many other ‘foreign investors’ that have a significant presence in Colombia (as well as most other countries around the world). (Edgar, 2015) In this context the numerous social and environmental campaigns demanding the accountability of individual corporate facades are fencing with ephemeral curtains of smoke, while the real owners and beneficiaries remain hidden in the shadows. And in the very few instances in which a campaign manages to build the social, political and economic pressure on one of these facades to a significant point, the owners make some temporary concessions or shut down the façade and then continue business as usual with another.

The selective assassination of Nestlé workers in Colombia continues

In May of this year three workers employed by a Nestlé subsidiary in Colombia were murdered in circumstances that indicate they were deliberately targeted for assassination (SINALTRAINAL, 2018). In one case, the victim (Gilberto Espinosa Victoria) had been warned (along with several other Nestlé workers in the region) that he would be considered a military target if he did not renounce his membership of the trade union SINALTRAINAL (Sindicato Nacional de Trabajadores del Sistema Agroalimentario – the National Food Industry Trade Union). The authors of the letter sent to the SINALTRAINAL office in Bugalagrande via a commercial delivery company declared, among other things, that they were ‘Friends of the Nestlé Old Guard’ and ‘Death to the Rats in Nestlé’.

SINALTRAINAL has been the victim of official and extra-official persecution since its foundation in 1982, including death threats and assassinations, constant harassment, raids and surveillance by State ‘security forces’, and judicial processes based on false accusations and pretexts. At least 28 of its members have been murdered, including 17 members who were employed by Nestlé subsidiaries and seven employed by subsidiaries or contractors of Coca Cola.

The efforts to destroy the trade union have taken many forms over the years and demonstrate a high degree of continuity, coordination and cooperation between State officials in Colombia and the United States (variously including politicians, bureaucrats, judges, prosecutors, police and intelligence personnel as necessary in any given instance), corporate executives of the two gigantic junk food companies, and paramilitary groups (or other hired assassins). The close relations and mutual interests between State officials and corporate executives are reinforced by the revolving doors of employment that exist between both companies and senior State officials.

A book published by SINALTRAINAL in 2015 describes the efforts of the trade union to secure justice with respect to the assassination in 2005 of one of its leaders (Luciano Romero). In the prologue the authors state:

“The structure of the repressive apparatus envisages the violence against trade unions as a fundamental element for the consolidation of transnational financial power, refusing to recognize the limits imposed by human rights and the rights of the people, labour rights, and of course environmental rights and obligations. In accordance with this broader strategy and objective, these practices are implemented in Colombia as a generalized and systematic attack against the trade union movement executed by an organized structure of power that guarantees impunity for its highest levels…

The dynamics of oppression of the trade union movement take many forms. From the institutions of the State, they include official stigmatization and the instigation of judicial processes against trade union activities, the individualization of work contracts, and in synthesis placing all the force of the law in favour of the interests of large corporations, most of which are owned by foreigners. The forms of oppression utilized extend to systematic persecution and violence perpetrated against the trade unions, such activities often being delegated to paramilitary armies to obscure the direct responsibility of the companies and of course of the State.

This has occurred within the framework of a new criminal modality, in which the public forces delegate extra-legal violence and oppression to paramilitary agents. Historically, the instigators and coordinators of the crimes committed against the trade unions have acted from the centres of military intelligence, extending from there to the paramilitary groups. The artifice of establishing and enabling semi-autonomous paramilitary groups to outsource or delegate direct responsibility for violent oppression is not sufficient reason to exempt the State and its officials from responsibility for these serious crimes; to the contrary, it obliges us to analyse the criminal structures of power in their entirety, organized and implemented as a single operational apparatus based on a common strategy, which is to say we must understand the appearance of paramilitary groups as a policy of the State which has served as the principle conduit of violence against the trade unions.

The methods described above, understood as a generalized and systematic attack against all trade union activities in which such violence constitutes a crime against humanity, responds to the pressures and requirements of the irrational accumulation of capital by transnational corporations in the final stage of colonialism. Such corporations no longer need territories occupied and administered by empires in the traditional sense; all they need is the submission of the economic policies, human and natural resources and means of production of a country to transnational financial power and control. In other words, the violence against trade unions is a structural element that guarantees great benefits to the financial, industrial and commercial conglomerates, destroying everything and everyone that confronts their interests.

While it is true that in Colombia these strategies are implemented in the midst of an armed conflict they are not an integral part of the conflict as such, they do not obey the internal dynamics and tensions of the conflict. Rather, they respond to interests, generally transnational, which are uniquely situated to benefit from the conflict.

Attributing the assassination of thousands of trade unionists to the consequences of the armed conflict is a tactic used to deflect attention from the culpability of the intellectual authors of these atrocities at the same time as they denounce trade unionists as insurgents, greatly exacerbating the risks they face. The attempts to link the violence against trade unionists to the armed conflict in this way deny the fact that we are confronted with a type of violence in which the conflict functions as a cover that facilitates the execution and impunity of these crimes. For this reason, however the reparations for the victims of the violence against trade unionists is arranged, it is essential that the role of those at the highest echelons of power who are ultimately responsible for the assassinations be exposed and condemned as a fundamental element of the realisation of truth, justice and memory for the victims…”

In the case of the murder of Luciano Romero, following several preliminary successes in the Colombian courts (including the prosecution of several paramilitary members and two intelligence officials as the material authors of the murder, and a court order demanding the investigation of evidence suggesting knowledge or collaboration by Nestlé executives) prosecutors have subsequently refused to investigate the evidence of collaboration between paramilitary groups, State intelligence, military and police personnel, and executives of Nestlé’s (and in other similar instances Coca Cola’s) subsidiaries in Colombia.

An article published in El Espectador on the 2nd of February 2008 (“Un juez de Colombia ordena investigar a Nestlé por su presunta participación en el asesinato de un dirigente sindical”) commented on the case:

“Late in November last year, while the country was observing with astonishment and anxiety the proof that the people kidnapped by the FARC were still alive, and when no one was talking about anything other than the common theme of a humanitarian accord, a transcendental judicial decision passed without notice: the sentence that a judge imposed on two demobilized paramilitaries for the assassination of the trade union leader Luciano Romero Molina on the 10th of September 2005.

The court’s decision would not be of great significance and would be just another prison sentence for the systematic extermination of trade unionists in Colombia … were it not for the fact that, in the opinion of the judge José Nirio Sánchez, the person who ordered the crime was the demobilized paramilitary commander Rodrigo Tovar Pupo, ‘Jorge 40’, and that, even worse, evidence exists indicating that the multinational Nestlé was involved in the homicide.

For that reason, in the court’s decision of 110 pages, which El Espectador has read, the judge ordered the investigation of Nestlé-Cicolac’s directors to analyse ‘their presumed interference in the assassination of the trade union leader and in particular the request made by Carlos Alberto Vélez in his capacity as head of security for the Latin American operations of the multinational.’ An awkward and uncomfortable panorama for the successful company, at a time in which sinister truths surround the company and scandalize a country that seeks justice as it exorcises the demons of the paramilitary war that silently encrusted itself among the interests of Colombian entrepreneurs…

[Luciano Romero’s body was discovered] by the authorities… Tortured. With a gag in his mouth. And fifty knife wounds. Irrefutable proof of the cruelty of his assassins. The proceedings would, however, reveal aspects even more disconcerting. Romero Molina was the subject of protective measures ordered by the Interamerican Human Rights Commission of the OAS due to his trade union activities, and on the 29th and 30th of October in 2005 – a month and a half after the day on which he was assassinated – he was to be a star witness with regard to Nestlé’s international policies in the sessions of the Permanent Peoples’ Tribunal in Berne (Switzerland).

According to the proceedings, Romero was going to denounce the presumed violations by the multinational of the labour rights of its employees before the international tribunal of alternative justice… The question that the historic decision states is whether the multinational made use of the paramilitaries in order to perpetrate these crimes [the murder of Luciano Romero as well as several other trade union leaders that had been assassinated previously…]”

Years later, an article published by Otramèrica (“Justicia para Luciano Romero”, the 30th of April 2015) noted that:

“Judge José Nirio Sánchez, of the Second Criminal Circuit Specialized Tribunal, condemned an informant of the DAS (the former intelligence service of the Colombian State) and a paramilitary as the material authors of the assassination of Luciano Romero. Moreover, the court stated that ‘other trade unionists and former Nestlé employees – such as Victor Mieles, Alejandro Martínez Toribio and Harry Laguna – shared the same fate as Romero on account of their dedicated battle on behalf of the trade union: all perished at the hands of the paramilitaries’, and ordered that an investigation be opened against the directors of the company Nestlé-Cicolac with the objective of ‘elaborating upon the possible participation of the multinational in the systematic persecution of the trade union leaders’.

Judge Sánchez was subsequently threatened and had to go into exile in the United States. There, in 2009, before the Education and Labour Committee, he declared that those who ordered and financed the executions, the intellectual authors, are more guilty (than the material authors) for the persistence of the violence. For this reason, the violence will not end until the real perpetrators are prosecuted…”

Having failed to obtain a comprehensive investigation in Colombia, SINALTRAINAL and Luciano Romero’s family were assisted by several NGOs in Europe (in particular Multiwatch, a Swiss coalition of civil society organisations, and the European Centre for Constitutional and Human Rights) in order to seek justice in the jurisdiction of the parent company. In Switzerland, the Office of the State Prosecutor accepted the file, then failed to commence investigations for over a year until they could claim that the Swiss statute of limitations precluded any formal investigation. Subsequently, the European Tribunal of Human Rights refused to consider whether the Swiss judicial system had fulfilled their obligations to conduct an impartial and comprehensive investigation without giving any reasons for their decision.

The most recent murders suggest that the campaign of State/ Corporate persecution and terror continues, in accordance with a brutal counterinsurgency doctrine that defines all social, political and economic opponents or obstacles to the status quo as ‘internal enemies’ and is manifested in a campaign of State, para-State and corporate persecution and terror. The campaign of systematic persecution is facilitated and amplified by the refusal of the judicial system to investigate and prosecute the perpetrators, intellectual authors and beneficiaries of the crimes (notwithstanding some individual efforts to breach the wall of impunity, such as the court decision discussed above).

Other Untouchable multinationals

The ability of Nestlé and Cocoa Cola to avoid judicial investigation are just two examples of the impunity enjoyed by many multinational companies in Colombia despite the emergence of increasingly conclusive evidence indicating varying degrees of collaboration by multinationals with paramilitary groups or of having committed other crimes on many occasions. Many multinationals have benefitted from the reticence of prosecutors and courts to confront The Untouchables (whether in the United States, Switzerland, the United Kingdom or elsewhere); other multinationals that have eluded every effort to investigate and prosecute them for possible collaboration in crimes against humanity include Drummond, Chiquita Brands and Occidental Petroleum (all of whom have their corporate headquarters in the United States), BP (associated with the exploitation of petroleum in Casanare – see for example Vega Vargas & Loingsigh, 2010), BHP Billiton (in particular associated with the lucrative ferro-nickel mine Cerro Matoso – Irrael Manuel Aguilar Solano, 2014: Daniel Macmillen Voskoboynik, 2016), and Dyncorp (TPP, 2016).

Apart from such grave, persistent and disconcerting cases, other transnational corporations and ‘foreign investors’ of all types have taken advantage of the systemic corruption and weakness of State (as well as international) institutions in order to engage in criminal activities, from the forced displacement of communities and environmental pollution (for example, BHP Billiton, Glencore-Xstrata and Anglo-American, owners of the Cerrejon coal mine – Edgar, 2016) to the non-payment of taxes and royalties and a wide range of other legal and financial fraud. Another well-documented example is Cargill; between 2010 and 2012 the company bought 52,576 hectares of land through 36 corporate front companies established with the purpose of avoiding legal restrictions on the amount of land that can be held by one ‘person’ (Oxfam Research Reports, 2014).

The Permanent Peoples’ Tribunal offers more testimony concerning the wide range of economic sectors and corporate fronts that have taken advantage of the social and armed conflict to enrich themselves at the cost of the Colombian people (TPP, 2008). The multinationals have been able to count on the protection of the judicial system and other relevant authorities in both countries (the United States and Colombia, as well as Switzerland and the European Union in the case of Nestlé) as well as the active support of a politicians and bureaucrats (including those within the mass media) that do everything possible to prevent and disrupt the attempts of the victims to realize justice, truth and non-repetition.

One case that is particularly exceptional is Chiquita Brands. The case is exceptional because many documents related to its collaboration with paramilitary groups were revealed following an agreement between the company and State prosecutors in the United States. Normally, such details never emerge to see the light of day. In exchange for a commitment by the federal prosecutors that they would not pursue criminal charges, Chiquita’s executives admitted that its subsidiary in Colombia (Banadex S.A.) paid approximately $1.7 million to paramilitary groups between 1997 and 2004 (including after the US government designated them as terrorist organizations in 2001) and handed over thousands of documents related to the case.

The documents testify to the collaboration of the management of Chiquita Brands in the execution of crimes against humanity committed by the paramilitary groups. They were revealed in judicial proceedings that followed the initial decision of the tribunal (in subsequent proceedings the company tried to prevent the public disclosure of the documents delivered to the Department of Justice). The court imposed a penalty of $25 million (about half of the profits made by the Colombian subsidiary, the company’s most profitable subsidiary during the period), and the money went to the Department of Justice – not one cent was paid to the victims in Colombia. The Lawyers’ Collective José Alvear Restrepo commented with respect to the proceedings:

“These resources [the payments to the paramilitaries], which converted Chiquita Brands into one of the most important financers of the AUC [the national paramilitary structure], furthered the massive commission of crimes against humanity and grave violations of human rights committed by paramilitary organizations in the regions of Urabá and Santa Marta, including forced displacement, homicides, torture, forced disappearances, among others.

In this context, on the 5th of November 2001 approximately three thousand AK-47 rifles and 5 million rounds of ammunition, an arsenal that was transported on the ship Otterloo, were unloaded and introduced into the national territory. The ship was unloaded in the port of Zungo, specifically on the docks belonging to the company Banadex S.A., from where the arms departed in fourteen trucks to be delivered to the paramilitary organizations in Córdoba and Urabá. The then paramilitary commander Carlos Castaño admitted publicly that this development constituted ‘his best goal’.

The majority of these weapons were not surrendered as part of the paramilitary demobilization process realized between 2003 and 2006. On the 16th of January 2008 the continued use of such arms was revealed when the national police took possession of 47 AK-47 rifles from the ‘demobilized’ paramilitary organization of Daniel Rendón Herrera (alias Don Mario), older brother of the ex-paramilitary commander Freddy Rendón Herrera, that appeared to have originated from the shipment brought by the Otterloo.

Apart from being documented in the Colombian and United States judicial systems, this relationship between Chiquita Brands International and the paramilitary structure in Colombia – and thereby the responsibility of this company in the commissioning of multiple crimes against humanity and grave violations of human rights – has been corroborated during the last year by different paramilitary commanders such as Salvatore Mancuso Gómez (alias Santander Lozada), Freddy Rendón Herrera (alias El Alemán), Rodrigo Tovar Pupo (alias Jorge 40), Nodier Giraldo Giraldo (alias el Cabezón or Jota), and Éver Veloza Garcia (alias HH).” (CAJAR, 2008; pp.1-2)

In 2003 the Organization of American States conducted an investigation of the arms traders and transporters involved in obtaining the weapons and transporting them to Colombia upon the request of the foreign ministers of Colombia, Panama and Nicaragua. They determined that the arms were bought from the Nicaraguan police by Shimon Yalin Yelinek, an Israeli citizen resident in Panama, with fraudulent documents claiming that the arms were for the Panamanian police. Shimon Yalin Yelinek was acting on behalf of a company domiciled in Guatemala, GIR S.A., whose owner and general manager (Ori Zoller and Uzi Kissileveich respectively) are also Israeli citizens and former members of the Israeli military (Ori Zoller was identified as also being a representative of Israeli Military Industries in the region). The arms were transported on a vessel registered in Panama.

The investigation did not examine what occurred in Colombia in any detail. In this respect the report states that:

“Colombia is the victim of the deviation of the arms. However, some Colombian customs officials were probably accomplices or bribed by the AUC in order to permit the unloading of the arms and ammunition from the Otterloo in the Port of Turbo…

What really occurred in Turbo is still a mystery. The signing of a form of the Antioquia Section of the Department of Administrative Security in Port Turbo by the captain of the Otterloo, Iturrios Maciel, clearly demonstrates that the ship arrived to Turbo. But, beyond that, all that is known is that in some way the arms ended up in the hands of the AUC. This would signify that someone in Colombia associated with Yelinek, Onattopp Ferriz [the owner of the Otterloo] or, maybe even the captain of the Otterloo Iturrios Maciel, was definitively responsible for the entry of the illegal arms to Colombian soil.” (OEA, 2003)

On the 30th of March 2004 the Supreme Court of Panama closed the investigation of Shimon Yalin Yelinek on the pretext that none of the relevant events occurred in Panama. (Frenadeso Panamá, 2005) The case has never been conclusively investigated by the authorities in Colombia. Other Israeli arms traders and mercenaries (invariably ‘ex-members’ of the Israeli military) have been identified as being involved in the training and equipping of paramilitary groups and the military wings of drug cartels and other possible criminal activities on numerous occasions (see for example, José Luis Bernal, 2015: PGAWC, 2010: Israel Shahak, 1989: Marshall et al, 1989: Privacy International, 2015). Although not enjoying official ‘diplomatic immunities and privileges’ as in the case of their US counterparts, it has proven no less difficult to investigate and hold them accountable for their involvement in the commissioning of crimes against humanity and a host of other crimes in Colombia.

Testimony provided by the former paramilitary commanders in the region where Chiquita Brands operated suggests that many of the companies were willing if not enthusiastic financers and in some cases active collaborators in the activities of the paramilitary groups, and also reveals the devastating effects of these activities for the workers and trade union members in the region. Among the declarations of former paramilitary commanders in judicial proceedings and interviews:

“In an interview on the 7th of May 2007, Salvatore Mancuso declared: ‘All of the banana producers paid us. All of them… A pact was made with Chiquita Brands Inc, Dole, Banacol, Uniban, Proban and Del Monte. They paid us one cent per dollar for every box that left the country. The other companies of the sector make a monthly payment. The company Dole took responsibility for receiving the money and finalizing the operation, which the companies were well aware of and which was qualified as a contribution to the ‘Convivir’ organization Papagayo… The massacres also enabled them to dismantle the social assistance programs they had pacted with the trade unions…’

In the same program ‘60 Minutes’ of the 11th of May 2008, Salvatore Mancuso assured the interviewer that ‘there was no need to exert pressure, blackmail or threats against the banana companies so that they would pay those percentages. The truth is that we never thought what would happen if they didn’t pay us, because they [the representatives of the companies] did it gladly…’

A computer belonging to Jorge 40 supposedly has files that list shipments of cocaine to Europe on ships loaded with bananas. ‘According to our intelligence reports, the company [used for these shipments] is called Chiquita’, according to a report of the national Prosecutor General’s office…

In open testimony rendered before the Justice and Peace Unit on the 10th of July 2008, Éver Veloza Garcia, alias HH, ex-paramilitary commander of the ‘Bloque Bananero’, reiterated ‘that it was the banana companies that paved the way for the arrival of the paramilitary groups to the region in order to combat the guerrilla groups.’ Furthermore, he said that the Convivir were created to legalize the payments of the companies for the military sustenance of the illegal group… And acknowledged that they forced the workers to work, by way of threats, when they organized strikes. He also acknowledged the assassination of banana workers. ‘The banana producers never paid us to assassinate trade union members, but it was clear that with the money they paid to the AUC many crimes against workers were committed’, he said… The paramilitary commander revealed that many of the banana ships were loaded with drugs from various ports. In some cases, divers at the service of the drug traffickers ‘secured tubes containing drugs to the hull of the ships’ in the open ocean to avoid security controls… ‘Every month, 4,000 kilos of drugs left towards Panama and Central America just from our zone’, Veloza Garcia assured…

In open testimony submitted before the Justice and Peace Unit on the 10th of July 2008, Éver Veloza Garcia (alias HH), ex paramilitary commander of the ‘Bloque Bananero’, affirmed that ‘the strikes by the workers were very damaging for them (the banana companies), they lost a lot of money when the workers protested, and when we arrived to the zone, in 1995, there was not one more strike’…

‘With the war that took place in Urabá, the only winners were the banana companies’, Éver Veloza Garcia, the former paramilitary commander in that Antioquia sub-region, affirmed before the Justice and Peace Unit…

EL COLOMBIANO: ‘All of the banana producers paid?’

ÉVER VELOZA GARCÍA: ‘When I told about our relations with the banana producers everybody started shouting, that that was false. And then Chiquita acknowledged the payments and is fined in the United States. Everyone paid, we are hoping now that Hasbún helps clarify the management of the Convivir and the banana producers. The Convivir were the legal figure utilized by the AUC to receive the payments. The businesspeople and politicians that provided money for the war are equally or more responsible. They were angry because I said that with that money we killed people and trade unionists, not one or two, many. They didn’t give us money so that we would kill someone acting upon their specific orders, but with that money we bought arms, ammunition, food, it was them that paid the lads. They must recognize that and be present, because the people that benefitted most from the war in Urabá were the businesspeople’…” (Testimony cited from various sources in CAJAR, 2008; pp.6-10)

Up until now the efforts to access the US judicial system have not managed to clarify the facts and prosecute the executives responsible for having approved and covered up the company’s collaboration with paramilitary groups. An article published by CBS News on the 31st of May 2011 comments on the efforts of the families of victims to obtain justice in the US courts:

“The lawsuits contend the AUC was able to continue its violent rampage mainly because of Chiquita’s financial support. The cases are brought under the Alien Tort Statute, a 222-year-old law that allows foreigners to sue in American federal courts if their claims involve violations of U.S. treaties or the ‘law of nations’.

The ATS, as the law is known, has been used previously to bring lawsuits over human rights violations in foreign countries, but the cases are often difficult to prove. In 2007, a federal jury in Alabama ruled against Colombians making similar claims involving the AUC and the Alabama-based Drummond coal company, a verdict that was upheld on appeal.

It wasn’t just money that Chiquita provided the AUC, according to court documents. In 2001, Chiquita was identified in invoices and other documents as the recipient of a shipment from Nicaragua of 3,000 AK-47 assault rifles and 5 million rounds of ammunition. The shipment was actually intended for the AUC.

The guns and ammo were unloaded by Chiquita employees, stored at Chiquita warehouses, and then delivered by trucks to the AUC, court papers said. They also claim there were at least four similar shipments, prompting AUC leader Castaño to boast about the deals in a Colombian newspaper…

To the Colombians’ lawyers, all of this adds up to overwhelming evidence that Chiquita should be held liable.

‘There is too much evidence over too long a period of time,’ Collingsworth said. ‘How do you talk your way out of that?’

Chiquita, however, is seeking to have the claims dismissed and said the cases wrongly seek to make the company liable “for every murder these terrorist groups committed during the several decades in which they held sway in the lawless, remote regions of Colombia where Chiquita’s subsidiary operated…”(See also: Business & Human Rights Resource Centre, 2016: CAJAR, 2008b: Verdad Abierta, 2013, “Por tráfico de armas, ordenan investigar a Banadex S.A.”, 4th of September 2013)

Pilar Chato (2017) reported on the latest efforts to hold the executives of Chiquita Brands accountable, an application to initiate proceedings before the International Criminal Court:

“What they are trying to do is ensure that the role of those executives in contributing to the commissioning of crimes against humanity is investigated…

Sebastian Escobar, a member of Cajar, emphasized the open investigations ‘without results’ in Colombia and the ‘lack of political will’ to extradite those possibly responsible. To this he added the ‘difficulties and inability’ of the State to investigate the 14 suspects. In part, because obtaining their extradition from the United States ‘is very difficult’ – a North American citizen has never been extradited to Colombia – and partly, due to the impossibility of obtaining declarations from the Colombian paramilitaries extradited to the United States, who moreover are leaving prison having completed part of their sentence and are obtaining residency permits there.

Escobar also denounced the impunity that could exist for these crimes with the new ‘Special Justice of the Peace’ tribunal [‘JEP’, established pursuant to the peace accord with the FARC], due to the difficulty of proving that the financing of paramilitaries by banana producers is related to the armed conflict, because the legislation establishing the JEP excludes from its jurisdiction civilians indirectly implicated in the conflict – the ‘third parties’ – and because in Colombia the financing of paramilitary organizations is deemed to be an aggravated crime of conspiracy to commit an offence, which is not within the jurisdiction of the JEP either.”

However, the International Criminal Court cannot assume jurisdiction over the proceedings (and possibly others, such as the case involving the Nestlé executives) until there is a definitive result from the transitional justice system or the conventional Colombian judicial system. Nonetheless, at the moment it appears very unlikely that the Colombian Congress or the Executive will permit the measures necessary to investigate and prosecute the ‘third parties’ that established, financed and supported the paramilitary groups and that have benefited the most from their activities.

The Persistence of the Counter Insurgency Doctrine and State/ Corporate Terror

José Honorio Martinez (2016) describes the role of the paramilitary groups in the application of the counterinsurgency doctrine waged by the Colombian Government in close cooperation with the US:

“Paramilitarism has been a pillar of the dominant political regime in Colombia, the oligarchic State, since the 1960s. As Giraldo states in the official report of the Historic Commission on the conflict in Colombia and its victims (published in 2015):

“The counterinsurgency strategy of the State has been founded upon paramilitarism. The official version of the phenomenon places its origin in the 1980s and explains it as arising from the reaction of rural land owners and agricultural and business associations to confront guerrilla actions, in response to which the land owners and businessmen in rural areas decided to create private armies to defend themselves, from which came the name commonly used to refer to such groups, ‘self-defence forces’. This remains the essence of the official version today. However, the real origin of paramilitarism, as proven by official documents, can be traced back to the Yarborough Mission, an official mission to Colombia by officials of the Special Warfare College of Fort Bragg (North Carolina) in February 1962. The members of the commission left a secret document, accompanied by an ultra-secret annex, containing instructions for the formation of mixed groups of civilians and military personnel, trained in secret to be utilized in the event that the national security situation were to deteriorate…”

The formation of paramilitary forces was itself preceded by the creation of private militias at the service of large landowners in the late 1940s and early 1950s that ravaged the countryside during ‘the Violence’ (a brutal civil war that claimed over 200,000 victims and displaced millions of people from rural areas)… The prolongation of the strategy of paramilitarism over time and the role that it has played in the neoliberal era, violently displacing rural communities and taking over their land for agricultural, mining, energy and infrastructure mega-projects or to extend the domains of large cattle ranches, signified the construction of a para-State exercising dominion over large swathes of the territory, population and institutions of the country.

While it may well be that the paramilitary armies no longer receive orders directly from the government, that doesn’t mean that substantial sectors within the military establishment and other State institutions don´t still consider them to be allies in the fight against the counterinsurgents and therefore continue supporting them and maintaining the relationship of subordination. Considered in these terms, paramilitarism isn’t just a group of criminal gangs that has infiltrated State institutions but rather represents a continuation of the armed elements of the para-State.

The ongoing assassination of human rights defenders, farmers and militants of the opposition (leaders and members of political parties and social movements opposing the traditional political parties and their offshoots) in the country denotes the maintenance of the same pattern of extermination practiced over the decades, at times varying in degree and intensity but always following the same methodology and objectives as outlined and implemented by the doctrine of National Security: anti-communism…

Giraldo describes the essence of this doctrine as follows: “In the arsenal of the doctrine of National Security, fundamentally comprising books (in the Library of the National Army), editorials and articles appearing in the Journal of the Armed Forces and in the Journal of the Army, discourses, presentations and reports of high level military commanders and their advisors, as well as in a collection of Counter-Insurgency Manuals marked as secret or confidential, ‘communists’ are explicitly identified as trade unionists, farmers who don´t sympathize with or who are reluctant to cooperate with military operations on their farms, students that participate in street protests, militants of non-traditional or critical political forces, defenders of human rights, proponents of liberation theology, and sectors of the population generally that are not in conformity with the status quo…”

More recently, a report jointly produced by a group of prominent civil society organizations (Mesa Nacional de Garantías, 2018) also testifies to the continuity of the counterinsurgency doctrine notwithstanding the official endorsement of the peace process following the conclusion of the Final Accord with the FARC:

“[Both the Minister of Defence as well as] the Prosecutor General of the Nation have taken a posture that tries to deny the systematic nature of the attacks against defenders of human rights by the paramilitary structures. Until recently the Prosecutor General constantly affirmed to the media that ‘there is no systematic strategy behind the assassinations of human rights defenders…’

The State continues denying the existence of paramilitary groups and since 2006 has baptized them with names that disguise their political character and the links that these groups have with the institutions; Criminal Bands (BACRIM) or Organized Armed Groups (GAOs). The Minister [of Defence] has repeatedly declared that – ‘In Colombia paramilitarism doesn’t exist. To say that there is paramilitarism in Colombia would be to grant political recognition to some bandits dedicated to common or organized delinquency’ – failing to acknowledge the paternity that the State has in the creation and maintenance of the paramilitary structures, favouring their creation in accordance with distinct military manuals related to combatting guerrillas and the counterinsurgency doctrine of the State.

Paramilitarism is part of a State policy, anchored in the doctrine of national security, which establishes among its strategies for fighting counterinsurgency, the persecution of social movements, opponents, social leaders and human rights defenders, all of whom are denominated internal enemies and equated with the guerrilla groups, and on this fundamental basis they are stigmatized and attacked. It is worrying for civil society that in spite of the Peace Accord, this doctrine is still in place and has not been modified, that it continues justifying and naturalizing aggressions against the social and human rights movements…

The persistence of the paramilitary phenomenon can be explained by four elements; first, not all of the paramilitary groups demobilized. Second, the results of the demobilization were not effective due to the fact that the demobilization was not simultaneous. Third, many mid-level commanders did not take part in the process and continued their criminal activities and finally, the financers and third party beneficiaries were not effectively investigated and their structures remained intact in the regions following the demobilization and still have not been revealed, although the most recent legislation intended to overcome the atrocities of the conflict gives them the option of doing so ‘voluntarily’, given that the ordinary justice system hasn’t done anything and nothing indicates that it will…

During 2017 the paramilitary groups have been associated with realizing 283 threats against human rights defenders which amounts to 76% of the threats made last year. The main group responsible for these was the ‘Águilas Negras’ with 36% of the threats and the ‘Autodefensas Gaitanistas de Colombia’ accounted for 14%. This information is notable, as according to diverse reports elaborated by human rights organizations the ‘Águilas Negras’ group has very little territorial presence and appears rather to conform with a strategy of covert actions by entities that should to the contrary be occupied with the safety of the public [that is, State ‘security’ forces]…” (See also Salvatore Mancuso, 2018)

At the same time as the threats and attacks by the illegal armed groups continue, State officials continue with the campaign of bureaucratic and judicial persecution. A recent example from the south of Colombia, a case of persecution by way of a process of ‘false judicial positives’ (detention and imprisonment based on false accusations), was recently reported by Contagio Radio:

“After the detention by the police of 42 people in Valle de Cauca and Nariño, for supposed links with the ELN guerrilla group, human rights organizations have denounced the act as a new case of ‘false judicial positives’, taking into account that among the detainees are social and community leaders and human rights defenders.

‘It is a process of criminalization which we are accustomed to seeing from the Office of the Prosecutor General who has openly stated his opposition to the peace dialogues with the ELN’, says Sharo Mina, a member of the Process of Negro Communities (PCN), who adds that what the authorities are trying to do is ‘demobilize the communities, create chaos and confusion with respect to the peace process, in order to politically confuse the civil society, taking into account that we are in a period prior to the national elections…’

Among those detained last Friday, supposedly for being part of the ELN, are four former mayors, a former member of the Ombudsman’s office, two former councillors, and two community leaders from Tumaco. For example, in the case of Sara Quiñonez and Tulia Marys Valencia, mother and daughter, both are members of the Community Council of Alta Mira y Frontera, in Tumaco. Sara not only has participated in the processes in defence of her community’s territory, but has been accompanying women and educating children in the municipality.

‘These are people who have an enormous emotional burden having been threatened and displaced from their communities, and now they are being re-victimized’, the member of the PCN states. In fact, the Afro-Colombian leader explains that many of the people that have been detained are the subject of protective measures ordered by the Interamerican Human Rights Commission and protection schemes organized by the National Protection Unit and the Victims Unit [of the national government]…” (Contagio Radio, 2018)

Another aspect of the strategy to weaken civil society organizations, which occurred in the same region in the same month, was a police raid and closure carried out against three Indigenous community radio stations in the Pasto region. It is just one more proof of the Establishment’s antagonism against civil society and its determination to annihilate their leadership and projects. (Resumen Latinoamericano, 2018)

‘Diplomatic’ Privileges and Immunity: two other permanent features of the social and armed conflict in Colombia

In the case of personnel involved in implementing the US’ role in the elaboration and execution of the counterinsurgency doctrine and other official programs of bilateral assistance such as Plan Colombia and Plan Patriota, the exclusion of judicial investigation is reinforced by the existence since at least 1962 of bilateral agreements that provide ‘diplomatic immunities and privileges’ from Colombian laws and jurisdiction of any type (extended in 2003 to include international law and the International Criminal Court).

The “General Agreement for Economic, Technical and Related Assistance Between the Government of the United States of America and the Government of Colombia” of 1962 (typically cited in subsequent bilateral agreements that perpetuate the status of diplomatic immunity for all US government personnel and contractors), established to facilitate and formalize the furnishing of “economic, technical and related assistance to the Latin American countries participating in the Alliance for Progress” in order to ‘assist national development’ and ‘achieve economic and social progress’, includes the provision that:

“The Government of Colombia will receive a special mission and its personnel to discharge the responsabilities of the Government of the United States of America hereunder and will consider this special mission and its personnel as part of the diplomatic mission of the Government of the United States of America in Colombia for the purpose of receiving the privileges and immunities accorded to that mission and its personnel of comparable rank.” (Article III)

This sphere of ‘privileges and immunities’, liberally extended to include the many contractors involved in implementing distinct elements of bilateral assistance programs, has been completed by the cover provided by the US government to personnel and contractors accused of having committed crimes in Colombia. On numerous occasions the US government has hurriedly taken people accused of criminal conduct out of Colombia and then refused to cooperate with Colombian officials to investigate allegations of crimes committed by its officials and contractors (see for example Renán Vega, 2015: CAJAR, 2008: NSA, 2004, 2008).

Another fundamental aspect of the United States’ participation in the social and armed conflict has been, and continues to be, the clandestine manner in which most related activities are conducted: “When analysing the causes of the social and armed conflict, as well as the variables that prolonged it and the impact on the civilian population, the United States is not a mere external influence but a direct actor in the conflict, due to its prolonged involvement during much of the twentieth century. Public awareness of the participation of the United States has been deliberately minimized by its covert nature; in accordance with this strategy, many of its activities in Colombia have been ‘planned and executed in such a manner that they can be hidden, or at least enabling plausible deniability of responsibility for such actions.’” (Renán Vega, 2015, quoting Dennis Rempe)

Apart from its deceptiveness generally in order to obscure the role of the United States in the conflict and the oppression of the Colombian people, this strategy violates another article of the 1962 bilateral agreement which assures that the governments will provide complete and accurate information about the activities of US personnel and activities to the Colombian people. Article II of the accord stipulates:

“To foster its economic and social progress, the Government of Colombia will make the full contribution permitted by its resources and general economic condition to its development program and to programs and operations related thereto, including those conducted pursuant to this Agreement, and will give full information to the people of Colombia concerning programs and operations hereunder…” (Article II)

The bilateral military accords constitute an illegitimate invocation of the Vienna Convention of 1961 concerning the purposes and objectives of diplomatic privileges and immunities, and puts in question the sovereignty of the country as well as the relevance and effect of the Constitution of the Republic. To the extent that the terms of the bilateral agreements violate the Constitution, either one or the other must be modified.

The Constitutional Court broached these topics in a decision in 2010 (Auto 288/ 10) with respect to the validity of a bilateral agreement signed in 2009 (“Complementary Accord for cooperation and technical assistance in defense and security between the governments of the Republic of Colombia and of the United States of America”). The Court stated that the commitments acquired by the Colombian State under the terms of the agreement signed by the Executive:

“are of transcendental significance due to their connection with diverse topics related to the political-constitutional order such as, among others, the exercise of sovereignty, the restrictions on the punitive powers of the State, the status of personnel, the principle of fiscal sovereignty, the monopoly over the use of force, and eminent dominion over the territory as constitutive elements of the State…

[In this respect, the accord contains the following commitments, among others.] Authorization to enter and utilize military installations by foreign military and civilian personnel. The Accord of 2009 permits the United States unrestricted access and use, with permanent vocation, to the Air Force Base Germán Olano Moreno (Palanquero), the Air Force Base Alberto Pawells Rodríguez (Malambo), the Military Fort of Tolemaida (Nilo), the Military Fort Larandia (Florencia), the Air Force Base Capitán Luis Fernando Gómez Niño (Apíay), the Naval Base ARC Bolívar in Cartagena and the Naval Base ARC Málaga in Bahía Málaga, as well as such others as may be agreed between the parties. To be precise, the vocation of permanency of foreign civilian and military personnel derives from Article XXV of the Accord, which declares an initial period of ten (10) years but that it is renewable for equal periods indefinitely…

Access and free circulation in the agreed installations by United States personnel (military and civilian)… Faculty of entry and free circulation of foreign ships, vehicles, aircraft and tactical vehicles in the national territory, without possibility of inspection or control by the national authorities… Authorization to bear and use arms in the national territory by foreign personnel… Recognition and amplification of a personal statute of diplomatic and fiscal immunities and privileges for personnel, contractors and subcontractors of the United States…

By their nature these obligations have profound juridical implications, for although it is correct that the accord was signed by subjects of international law, it also represents a juridical act that could project its effects over internal rights…”

Moreover, the Accord provides that:

“The Colombian State authorizes the United States to establish satellite receiving stations for radio and television transmissions, without licence applications and without cost…

The Colombian State authorizes the United States to utilize the infrastructure of the telecommunication s network as required (radio frequencies and the electromagnetic spectrum) to achieve the objectives of the Accord, without application processes or licence concessions and without cost…”

These latter provisions presumably are related to the United States’ installations conducting surveillance of Colombian airspace, maritime territories and telecommunications (see for example Renan Vega, 2015).

In the end, the Constitutional Court did not make a decisive statement concerning the arguments related to the multiple grave violations against both the sovereignty of the country as well as some of the most fundamental terms and principles of the Constitution of the Republic. Ultimately it was not necessary to do so, as the key point of the decision is that the accord was not submitted to the procedure specified by the Constitution to provide it with validity in the first place (that is, that all international treaties and agreements must be approved by the Congress in order to take effect). Nonetheless, the Court emphasized the principle, and the necessity, that the Court is vested with authority to review such acts and agreements:

“[The accord would impose] obligations on the Colombian State related to the exercise of sovereignty. In this respect the jurisprudence has recognized that even when the concept of sovereignty is redefined by the development of international relations and the necessities of the international community, its pillars remain unaltered. For example, in the Sentence c-578/02 the Court held:

‘Despite this evolution, three elements of sovereignty remain constant: (i) the understanding of sovereignty as independence, especially in the face of States with hegemonic pretentions; (ii) acceptance that acquiring international obligations does not compromise sovereignty, as well as recognition that sovereignty cannot be invoked to retract obligations that are validly acquired; and (iii) reaffirmation of the principle of immediacy according to which the exercise of sovereignty by the State is subject, without intermediation by the power of another State, to international law’…

In a State of Law there can be no normative act that operates beyond constitutional control, as one of its axioms is the subjection of the power of the public authorities to the imperium of the law. Moreover, if the Constitution is the law of laws, a juridical act exempt of constitutional control cannot be conceived…

The lack of a congressional law approving an act that formally is a simplified accord but whose content includes matters that pertain to a solemn treaty, impede the Court from furthering a comprehensive examination of the instrument, even when it does not deprive the Court of competency to declare such an act as ineffective in the internal juridical order, precisely for not having been subjected to the requirements that the Constitution demands.

The Accord under examination is susceptible to being contested by way of a public action for unconstitutionality, for being an act that is questioned for having been approved without fulfilling the requirements that the Constitution demands or for conflicting directly with the Constitution. For these reasons, the Constitutional Court is competent to make a pronouncement with respect to its constitutional validity.”

Notwithstanding the Court’s decision denying the validity of the 2009 accord, in effect the activities specified in its provisions describe the activities that United States personnel and contractors continue to undertake throughout Colombia and the rights and privileges that they continue to enjoy. As in the case of the multinationals that continue their criminal activities without any judicial investigation much less condemnation or prosecution, neither the executive, legislative nor judicial branch of any of the States involved has demonstrated the slightest interest in defying the status quo. In this respect the report by civil society organizations mentioned above (Mesa Nacional de Guarantías, 2018) states:

“[The most recent initiatives of the Executive and the Congress with respect to paramilitary groups] appear more like a project to thwart the judicial processing of these groups and perpetuate the pseudo-confrontation that the State says it is maintaining against them. They appear to reflect a fear that these groups could be effectively dis-activated and that they might begin to state the truth as to who have been the financers, promoters and beneficiaries of their actions…

[Moreover], the national State Prosecutor still has not investigated the confessions made by senior paramilitary commanders in the Justice and Peace jurisdiction providing evidence of the alliances and participation of more than 120 companies with the paramilitary structures, including Drummond, Chiquita Brands, Postobón, Ecopetrol, Termotasajero, the National Cattlemen’s Union, and businessmen, banana and cattle producers in Urabá who were identified as financing their crimes and supporting the expansion of paramilitary groups in the region.

However, the Justice and Peace process [related with the 2005 accord between the Colombian State and paramilitary groups] did not occupy itself with deepening the investigations to achieve the clarification of the responsibility of the civilian third parties and the businessmen [that supported the paramilitary groups] due to the fact that its jurisdiction only provides it with faculties to judge the responsibility of the combatants and not of the financers and collaborators.

This jurisdiction ordered the certification of 15,921 copies so that the ordinary justice can proceed to investigate third parties linked with facts related to the conflict, many of whom make up part of the business sector of the country. According to the Prosecutor General of the Nation in response to a petition by the Colombian Commission of Jurists, up until August 2017 there were 16,116 certified documents.

Up to today there have been no significant advances in the investigation, prosecution and judgement of these actors…” (Mesa Nacional de Garantías, 2018)

Thus, as in earlier periods, it seems that everything possible is being done to perpetuate the implementation of the counterinsurgency doctrine and State/ Corporate terror under the leadership and control of the United States and to prevent the roles of the other financers, enablers and beneficiaries of these policies from being revealed and held accountable.

Renán Vega Cantor, 2015, “The International Dimension of the Social and Armed Conflict in Colombia: Interference of the United States, Counter-Insurgency and State Terrorism”, Chapter 13, Historical Commission of the Conflict and its Victims, A Contribution to Understanding the Armed Conflict in Colombia, (translated to English by Daniel Edgar), Havana, Cuba